Allahabad High Court

Sampurnanand Mishra vs Union Of India And 3 Others on 22 December, 2015

Bench: V.K. Shukla, Mahesh Chandra Tripathi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 29
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 860 of 2015
 
Appellant :- Sampurnanand Mishra
 
Respondent :- Union Of India And 3 Others
 
Counsel for Appellant :- Ramesh Kumar Mishra,Gyanendra Kumar Mishra
 
Counsel for Respondent :- A.S.G.I.
 
Hon'ble V.K. Shukla,J.

Hon'ble Mahesh Chandra Tripathi,J.

Sampurnanad Mishra is assailing before this Court the validity of order dated 13.10.2015 passed by learned Single Judge in Writ Petition No.54086 of 2015 (Sampurnanand Mishra vs. Union of India through Secy. and others) wherein learned Single Judge has refused to quash the order dated 20th December, 2013 whereby recovery towards maintenance is being made from the salary of the petitioner-appellant to be paid to his wife Smt. Ritu Mishra.

The factual situation that is so emerging, that petitioner-appellant is an employee of Indian Army serving as Hawaldar and he has been married to Ritu Mishra on 18th February, 2011 as per Hindu Vedic rites. It appears that there has been a matrimonial discord and petitioner-appellant has filed divorce case for dissolution of marriage under Section 13 of Hindu Marriage Act in the Court of Principal Family Judge, Gorakhpur which was registered as Case No.285 of 2013 (Sampurnanand Mishra vs. Smt. Ritu Mishra). Petitioner-appellant has stated that FIR has been lodged on 9th May, 2013 against the him and his family members under Section 498-A/34 I.P.C. at P.S. Saran Mahila which is registered as G.R. No.1938 of 2014 and Case No.10 of 2013. Petitioner-appellant has stated that not only this, a Maintenance Case No.27 of 2013 has also been filed on 28th May, 2013 under Section 125 Cr.P.C. with a prayer to pay Rs.15,000/- as maintenance and Rs.5,000/- per month for expenses of the cases. Petitioner-appellant has accepted this fact that said maintenance case is pending before the Court below and he has entered appearance therein.

From the record in question it is reflected that vide letter dated 31st August, 2013 issued from H.Q. Central Command PIN-908544 C/o 56 APO, the petitioner-appellant has been provided with a show cause notice regarding the grant of maintenance allowance under Section 91 (i) of Army Act, 1950. By the said show cause notice dated 31st August, 2013, petitioner-appellant has been informed that he has failed to maintain his wife hence he should show cause as to why suitable maintenance allowance should not be granted to his wife out of his pay and allowances, under the provision of Army Act Section 91(i) read in conjunction with Army Rule, 1993 as amended and Army Order No.2/2001. It also directed by the said letter that reply should be submitted through proper channel in writing within 30 days from the date of receipt of the said letter. Petitioner-appellant in compliance of the order/letter dated 31st August, 2013, submitted his reply to the aforesaid show cause on 7th October, 2013 by stating each and everything regarding pendency of the case of maintenance as well as divorce case. Thereafter order dated 20th December, 2013 has been passed regarding the maintenance allowance by deduction of 22% per month from the salary i.e. the pay of allowances of appellant and it payments to Smt. Ritu Sampurnanand Mishra i.e. respondent no.2 with effect from 26th June, 2013.

Petitioner-appellant submitted that in view of the Army Order 2001, as case for maintenance under Section 125 Cr.P.C. has already been filed, the Army Authority has no power to pass maintenance order and action taken is per-se bad. Petitioner-appellant submitted that in this background he has preferred writ petition and the same stands dismissed on 13th October, 2015.

Counsel for the petitioner-appellant submitted that once maintenance case was subjudice before the court below, then such an order could not have been passed and passing of such order is in breach of order passed by Additional Director General, Discipline & Vigilance, New Delhi dated 12th August, 2013 and as such, in the facts of the case, writ petition ought to have been allowed.

Shri Ashok Mehta, Senior Advocate assisted by Shri Pramod Kumar, Advocate appearing for Union of India, on the other hand, contended that in the Army Act, 1950 there is an absolute authority provided for to pass such an order provided pre-requisite terms and conditions are fulfilled and in view of this, no interference should be made.

In order to appreciate the respective arguments that has been so advanced, reliance we take note of Chapter VIII of the Army Act, 1950 that deals with penal deductions and therein Section 90 deals with deductions from pay and allowances of officers, Section 91 deals with deductions from pay and allowances of persons other than officers and section 94 deals with limitation on deductions. Relevant provisions sections 91 and 94 are being looked into:-

"91. Deductions from pay and allowances of persons other than officers:- Subject to the provisions of section 94 the following penal deductions may be made from the pay and allowances of a person subject to this, Act other than an officer, that is to say,-

(a) all pay and allowances for every day of absence either on desertion or without leave, or as a prisoner of war, and for every day of transportation or imprisonment awarded by a criminal court, a court- martial or an officer exercising authority under section 80;

(b) all pay and allowances for every day while he is in custody on a charge for an offence of which he is afterwards convicted by a criminal court or a court- martial, or on a charge of absence without leave for which he is afterwards awarded imprisonment by an officer exercising authority under section 80;

(c) all pay and allowances for every day on which he is in hospital on account of sickness certified by the medical officer attending on him to have been caused by an offence under this Act committed by him;

(d) for every day on which he is in hospital on account of sickness certified by the medical officer attending on him to have been caused by his own misconduct or imprudence, such sum as may be specified by order of the Central Government or such officer as may be specified by that Government;

(e) all pay and allowances ordered by a court- martial or by an officer exercising authority under any of the sections 80, 83, 84 and 85, to be forfeited or stopped;

(f) all pay and allowances for every day between his being recovered from the enemy and his dismissal from the service in consequence of his conduct when being taken prisoner by, or while in the hands of, the enemy;

(g) any sum required to make good such compensation for any expenses, loss, damage or destruction caused by him to the Central Government or to any building or property as may be awarded by his commanding officer;

(h) any sum required to, pay a fine awarded by a criminal court, a court- martial exercising jurisdiction under section 69, or an officer exercising authority under any of the sections 80 and 89;

(i) any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

94. Limit of certain deductions:- The total deductions from the pay and allowances of a person made under clauses (e), (g) to (i) of section 91 shall not, except where he is sentenced to dismissal, exceed in any one month one- half of his pay and allowances for that month."

A bare perusal of the provisions quoted above would go to show that subject to the provisions of section 94, penal deductions are permissible from pay and allowances of an incumbent under the Act other than an officer and clause (i) of section 91 clearly proceeds to contain provision wherein deductions are permissible that is required by order of Central Government or any prescribed officer to be paid for maintenance of wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child. The only limitation that is provided for is under section 94 that total deductions from the pay and allowances of a person made under clause (e), (g) to (i) of section 91 shall not, except where he is sentenced to dismissal, exceed in anyone month one-half of his pay and allowances for that month.

Thus there is substantive provision provided for under the Army Act, 1950 empowering the Authorities concerned to make deductions from the pay and allowances in case amount is required to be paid for the maintenance of wife or his legitimate or illegitimate child towards the cost of any relief given to the said wife or child. Thus there is no lack or dearth of authority for enabling the authorities to pass such an order.

The issue that is raised in the present case is that it is true that proceedings under Section 125 Cr.P.C. has been initiated by the authorities but the fact of the matter is that no orders in black and white has been passed on the same and reliance has been placed upon the letter of Additional Director General, Discipline & Vigilance, New Delhi dated 12th August, 2013 for the proposition that such action ought not have been undertaken.

Paragraph 3 thereof reads as under:

"3. Maint Cases Pending in Civil Courts. When cases of grant of maint allowances are subjudice following guidelines shall be followed:-

(a) In case the concerned party first approaches the civil court and later the mil auth, the concerned party may be advised to settle the issue in the civil court.

(b) In case the concerned party files an application with the Army auth only, and has not apch a civil court then the Army auth will decide the matter as per AO 2/2001 in an expeditious manner.

(c) However, should be concerned party file a case in the civil court if aggrieved by the decision of the Army authority then the procedure adopted by Army auth will also come under the judicial review."

The letter of the Additional Director General, Discipline & Vigilance, New Delhi dated 12th August, 2013 cannot be permitted to dilute the statutory powers that has been conferred under Army Act, 1950 providing to pay for the maintenance of wife or his legitimate or illegitimate child. 'Circular' in question at the best are guidelines and the law on the subject is clear that guidelines are not at all enforceable in the Court of law and it in no way same would divest the Authority concerned to pass an order and specially when order has been passed providing maintenance amount to the family members of an incumbent governed by the Apex Court.

In our considered opinion, there is absolutely no bar that the maintenance cannot be paid to the wife/child of the Army personnel from his salary. Accepted position is that wife and family members are governed by the provisions which are provided under the Army Act, 1950 and it cannot be accepted that the said provisions cannot be applicable merely because there are other provisions that entitles the wife of the petitioner-appellant to approach the Court for maintenance. The said remedies are common law remedies whereas the remedy provided under the Army Act, 1950 is a special remedy. The power to grant maintenance under Army Act are independent of the provisions of Section 125 Cr.P.C.; Section 24 of Hindu Marriage Act. Even in cases, where wife has been paid maintenance under Section 125 Cr.P.C. and amount awarded is insufficient, she can move the Army authorities under Section 91 of the Act for awarding of maintenance on the parameters of Section 91(i) of the Act and same on being accepted should not cross the limit provided for under Section 94 of the Act.

View to the similar effect has been taken in the case of Vivekanand Mandal vs. Minali Mondal and others 1998 (1) CLJ 193, wherein mention has been made that on insufficient maintenance being awarded provisions of Section 91(i) of the Act can be invoked and Section 91(i) of the Army Act is a law peculiar to army men and runs parallel to the provisions of Section 125, 127 Cr.P.C.

Once accepted position is that there is remedy provided for under the Army Act, 1950 and the maintenance that has been accorded by way of order dated 20.12.2013 is not at all crossing the limits that is provided for under section 94 of Army Act, 1950 and till date no order of maintenance under Section 125 Cr.P.C. has been passed, then we find no illegality or infirmity in the order dated 13.10.2015 passed by learned Single Judge.

Special Appeal sans merit and is dismissed accordingly.

Order Date :- 22.12.2015

A. Pandey

Case :- SPECIAL APPEAL DEFECTIVE No. - 860 of 2015

Appellant :- Sampurnanand Mishra

Respondent :- Union Of India And 3 Others

Counsel for Appellant :- Ramesh Kumar Mishra,Gyanendra Kumar Mishra

Counsel for Respondent :- A.S.G.I.

Hon'ble V.K. Shukla,J.

Hon'ble Mahesh Chandra Tripathi,J.

Civil Misc. Delay Condonation Application

Application is allowed.